If you’ve ever wondered how far your freedom of speech online extends, Harford County Circuit Court Judge Thomas Marshall has the answer for you.
Marshall on Friday ordered The Dagger to turn over information related to the identities of two of the site’s anonymous commenters to Diane Smith of Havre de Grace, who is pursuing a defamation case against the unknown persons.
This decision came despite our best efforts to protect that information in court under the shield of the First Amendment. Despite the court’s decision in this case, we will continue to defend your rights to free speech and maintain the option for anonymous commenting on the site because we know forums like ours are one of the few ways for whistleblowers to effect change.
You’ll find scans of Marshall’s written opinion and order below, but here are the basics:
Smith first filed a claim of defamation in Harford County Circuit Court on June 14, alleging that two Dagger commenters under the pseudonyms of “avenger” and “yescharactercounts” defamed her in statements posted on the site last year. In those comments, the two anonymous writers claimed Smith wrote fraudulent checks and illegally used funds for political purposes.
We thought the comments were near, if not over, the top when posted and took some of them down immediately. We removed the remainder after Smith protested. Nonetheless, Smith contacted The Dagger personally in an attempt to learn the identities of the two posters. We refused her request, believing that removal of their comments from the site was sufficient.
On Aug. 3 her legal counsel, George Robinson of Havre de Grace, issued a subpoena for the information. We opted not to turn it over, and instead sought a Motion for Protective Order from the court to resist the subpoena.
At an Oct. 14 hearing before Marshall, we argued that Smith was a public figure and must meet a higher standard to prove defamation. We argued that Smith did not meet that standard, and that identifying information for each of the commenters should be protected under the First Amendment.
On Friday, Marshall denied our Motion for Protective Order, writing that the interests of the two anonymous commenters, “are no greater than any other defendant accused of defamation. Just because the alleged defamatory remarks were made on an internet site by an anonymous poster does not entitle the anonymous publisher [to] any greater protection.”
Marshall’s opinion was centered on a 2009 state Court of Appeals case, Indep. Newspapers, Inc. v. Brodie. That case established the guidelines courts use to weigh free speech rights against defamation claims when an anonymous person is involved. It sets down several hurdles, the two most important being that the plaintiff must put together a reasonable case that they actually were defamed under the legal requirements of the term and, if so, the court must decide whether the commenter’s First Amendment free speech rights outweigh the strength of the plaintiff’s case.
As a result of both anonymous comments, Smith claimed in court documents that her “character and reputation were harmed” and that the posts “impugned her standing in the community and caused her to suffer mental anguish and personal humiliation.” Furthermore, because of them, “she has been forced to resign from various institutions.”
Demonstrating the complexities of our legal world, Marshall found that Smith had a case for defamation even though “avenger” only described her as the “widow of HdG” and the “former president of the HdG Rotary” as well as providing services for “non-profits.” Those descriptors, Marshall ruled, were enough that “members of her community could reasonably ascertain” her identity.
But a few pages before reaching that conclusion, Marshall found that, “Although Plaintiff has been active in Havre de Grace community affairs and local politics, she has not attained the stature of a ‘public figure’ within the meaning of the First Amendment rule as developed by the various appellate courts.” He goes into much further detail on the issue on pages seven through nine of the opinion below. That the organizations are private entities and not public offices was a key component of Marshall’s rationale.
In essence, Marshall deemed that Smith is prominent enough of a figure that the average person would know who she is from those scant clues, but not public enough that she has to claim the commenters acted with “malice.”
That’s an important distinction, because under the famous First Amendment case New York Times Co. v. Sullivan (1964), a person who qualifies as public figure and claims defamation has to also prove that the person making the comments acted with “a reckless disregard for the truth.”
Historically, that’s been a very tough hurdle for libel and defamation cases to overcome.
Because the comments imply criminal action on Smith’s part, Marshall ruled that Smith had presented a “prima facie” case of defamation. But, was it stronger than the commenters’ right to free speech?
Marshall writes that, “At the hearing, the Plaintiff emphasized that she wants the opportunity to confront the individuals” who made the comments. Without their identities, her defamation case cannot go forward, and Marshall ruled that “unprivileged libelous utterances are not worthy of Constitutional protection.”
We do not support libel or a wanton disregard for the truth on this site – we attempted to walk a middle road between protecting our commenters’ anonymity while initially hearing out Smith’s protest of what was said about her.
But Marshall’s denial of our Protective Order stands. Smith, armed with the IP addresses of two anonymous commenters, can attempt to clear the remaining hurdles to bring her defamation case to court.
Our intent is not to stand in the way of justice. Our mission is to provide an outlet to reach it. We will continue to allow and promote the appropriate posting of anonymous comments. We will continue protect your rights to free speech.
Keep the flow of information open and honest, and the truth will always come out.